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WJB v BLZ; WDE QCATA 92
QUEENSLAND CIVIL AND ADMINISTRATIVE APPEALS TRIBUNAL
WJB v BLZ; WDE  QCATA 92
ORIGINATING APPLICATION NO:
20 June 2019
25 February 2019
Senior Member Guthrie
APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – ERROR OF LAW – WHAT IS – GENERALLY – where one daughter appointed as guardian for health matters – where another daughter remained single attorney under enduring document – where attorney alleged guardian would compromise health decisions of adult to avoid debt – where issue not raise at first instance hearing
GUARDIANS, COMMITTEE, ADMINISTRATIONS, MANAGERS AND RECEIVERS – OTHER MATTERS –where the tribunal declared adult did not have capacity to make complex financial decision – where adult executed enduring power of attorney document – where one daughter appointed as guardian for health matters – where another daughter remained single attorney under enduring document – where attorney alleged guardian would compromise health decisions to avoid debt – where issue not raised at first instance hearing
Guardianship and Administration Act 2000 (Qld) s 15, s 11, s 43, Schedule 1
Property Law Act 1974 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142, s 146
Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315
Metwally v University of Wollongong (1983) 59 ALJR 481
PL v PT & ORs  QCATA 114
The Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon (2005) 221 ALR 402
Walker & Anor v Davlyn  QCA 565
Water Board v Moustakas (1988) 180 CLR 491
ZHH v ZHI  NSWCATAP 107
APPEARANCES & REPRESENTATION:
Mr V. Brennan of Counsel, instructed by Corney & Lind Solicitors
REASONS FOR DECISION
- The adult, WDE is a 90- year- old widow currently residing in a retirement village.
- On 30 July 1996, WDE executed an Enduring Power of Attorney (‘the enduring document’) appointing jointly and severally her daughters, WJB and BLZ. The enduring document authorised the attorneys to do anything that the adult may lawfully authorise an attorney to do. The enduring document was made pursuant to the Property Law Act 1974 (Qld) as in force at that time and so related to financial decision making only.
- A written loan agreement (‘the agreement’) was entered into between WDE and BLZ on 14 September 1999. Clause one of the agreement stated that the total debt owed by BLZ to WDE was the amount of $218,910.63. Clause three of the agreement outlined that the loan may be repaid at any time but must be repaid in full within 60 days of demand by WDE or alternatively, within 25 years from the date of agreement, that is by 14 September 2024, when WDE would be aged 96 years. As at June 2017, the total outstanding amount of the loan was $114,261.62.
- On 19 June 2013, WDE executed her current will. Under the terms of the Will, any outstanding debts owed to WDE by her daughters and sons-in-law at the date of her death were to be forgiven. Her will also outlined that her estate was to be divided between her daughters in equal shares.
- On 13 November 2017, BLZ applied to the Tribunal for leave to resign as an attorney and also lodged an application for directions. On the basis of the information provided by BLZ in her application, the Tribunal initiated an application for the authorisation of a conflict transaction, appointment of an administrator and an application for directions.
- Subsequently, on 16 January 2018, WJB made an application to the Tribunal for the appointment of a guardian, proposing herself be appointed. On the same day, she also made an application to the Tribunal for directions. These applications were made or initiated by the Tribunal under the Guardianship and Administration Act 2000 (Qld) (‘the GAA’).
- On 26 March 2018, the Tribunal determined the applications making the following orders and directions:
- BLZ is appointed as guardian for the matter of health care for the adult;
- The appointment of a guardian remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years;
- The application for the appointment of an administrator for WDE is dismissed;
- The Tribunal gives leave to BLZ to resign as attorney for WDE under the enduring document;
- The enduring document is changed so that WJB is the sole attorney for financial matters;
- The applications for directions are dismissed;
- The application for authorisation of a conflict transaction is dismissed; and
- WJB as attorney for WDE for financial matters must apply to the Tribunal for authorisation prior to making a decision to call up the loan made by WDE to BLZ (as documented in the agreement dated 14 September 1999) before the end of the term of that loan.
The appeal framework
- In deciding an appeal against a decision on a question of law only, the appeal tribunal may:
- (a)confirm or amend the decision; or
- (b)set aside the decision and substitute its own decision; or
- (c)set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration –
- with or without the hearing of additional evidence as directed by the appeal tribunal; and
- with the other directions the appeal tribunal considers appropriate; or
- (d)make any other order it considers appropriate, whether or not in combination with an order made under paragraph (a), (b) or (c).
Grounds of Appeal
- On 17 May 2018, WJB applied to appeal orders 1, 2, and 5, identifying three grounds of appeal. However, in subsequent written submissions, WJB abandoned grounds two and three and sought an order from the Appeal Tribunal that only order 1 be set aside and that the Appeal Tribunal substitute its own decision and that the decision ought to be that WJB be appointed guardian for WDE for the matter of health care.
- Ground 1 as it is referred to in the application to appeal identifies what WJB describes as two errors made by the learned member in failing to consider or take into account particular matters in reaching the conclusion that BLZ was appropriate for appointment as a guardian. The two errors are:
- The member erred in law by failing to have regard to the appellant’s submission to the effect that BLZ was in a position of conflict due to her ongoing loan from WDE which is to be forgiven in the will.
- Alternatively, the Member erred in law in failing to take into account a mandatory requirement, relevantly, that BLZ was in a position of conflict due to her ongoing loan from WDE which is to be forgiven in the will.
- Further, the applicant claims that those failures by the learned member meant that the member’s exercise of the discretion to appoint BLZ guardian for WDE ‘miscarried’.
- Those grounds were particularised. Essentially, WJB argues that the ongoing existence of the loan which was to be forgiven by WDE by her Will ‘puts BLZ in a position where her interests are in conflict with her duty to WDE as guardian and that the learned member failed to give proper consideration to this conflict’.
- The ground of appeal was expanded upon in the applicant’s filed written submissions and in the oral submissions made at the hearing. It seems to us that the written submissions seek to introduce an additional error. However, we have considered it as the respondent has been given a proper opportunity to respond to the applicant’s submissions.
- The applicant claims that the learned member erred in exercising the discretion to dismiss WJB’s application to be appointed as WDE’s guardian. Further, the applicant claims that the member erred in exercising the discretion to appoint BLZ guardian for health care matters. It is claimed that the member failed to treat the two applications for appointment as separate applications and ‘conflated’ the two. 
- It is argued that there are no reasons for dismissing WJB’s application for appointment as guardian and the learned member erred in deciding to appoint BLZ as guardian due to the conflict relating to the outstanding loan, in particular, that BLZ was a creditor who would receive both a direct benefit as one of five beneficiaries under the will and also an indirect benefit as a creditor whose debt is expunged.
- The alleged conflict between being WDE’s guardian and the existence of the loan and the terms of the agreement and the will are encapsulated in the applicant’s written submission:
"It is, or it ought to be, uncontroversial that when exercising her powers as [WDE’s] guardian for health matters, BLZ will be doing so in the context of those decisions having a material and not merely incidental effect on WDE’s health and her life expectancy. WDE’s life expectancy and the preservation of that expectancy places BLZ in the invidious, and clearly conflicting, situation of making decisions which could directly affect her ability to avoid paying a not insignificant debt to WDE."
- The applicant argues that the learned member failed to expressly address BLZ’s conflict in any way and that there was no analysis as to why the learned member formed the view that BLZ’s interests were not likely to conflict with WDE’s interest over health care decisions. There was no discussion or mention of BLZ’s ongoing loan and the forgiveness of that loan in WDE’s will in the context of the appointment of a guardian for WDE. WJB says her sister is WDE’s creditor who, upon WDE’s death will have her debt forgiven. WJB further outlines that WDE is not a mere beneficiary pursuant to the terms of the Will but also a creditor who receives both a direct benefit (as one of five beneficiaries according to the terms) and also as an indirect benefit (as a creditor whose debt is expunged).
- The applicant relied on Waterways Authority v Fitzgibbon arguing that there was an error in the fact finding process by the learned member. In that case, Hayne J with whom McHugh J and Gummow J agreed found that the primary judge was bound to state the reasons for arriving at the decision reached. Further that the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Hayne J said that there had been a failure to examine all of the material relevant to the particular issue so that there was an error in the process of fact finding.
- As the Appeal Tribunal stated in PL v PT & Ors (footnotes omitted):
"The procedure adopted in any hearing is within the tribunal’s discretion. A greater or lesser degree of informality may be appropriate, as may be in keeping with a proper consideration of the matters to be determined in the particular case. Hearing of applications under the Guardianship Act are inquisitorial in nature. It is appropriate to outline at the commencement the issues required to be determined according to the legislative framework (although it is not necessary to talk about the particular sections that are relevant) and then to systematically consider the relevant issues for determination. Because there are no respondents to the applications who, in other types of applications outside the guardianship jurisdiction of QCAT, would put forward evidence contrary to the applicant’s evidence, the member hearing the proceeding has the responsibility to ensure, as far as the Tribunal considers it practicable, that QCAT has all relevant information when hearing and deciding applications. In doing so, it must appropriately raise issues, and test the available evidence. "
- In the original hearing in this case, WJB was legally represented by counsel.
- In this case the learned member identified the relevant issues at the commencement of the hearing. The learned member made it clear to those present at the hearing that the relevant legislation, the GAA provided for a substituted decision-making regime and not a best-interests regime:
"And the most fundamental issue of all, which I think you’ve lost sight of in your submissions to me, this is a substituted decision-making regime; it is not a best-interests regime. I don’t care what you consider to be the best interests of your mother; it is not the issue. It’s a substituted decision-making regime: what decisions would have she made if your mother – if she hasn’t got capacity – if she had capacity now? That’s all we are looking at. So a lot of what’s in the material so far, I think, is a little misguided. I’ve taken it into account, but I have to give what weight I can to it."
- The learned member is correct in our view. The GAA makes it clear that a person or other entity who performs a function or exercises a power under the GAA for a matter in relation to an adult with impaired capacity for the matter must apply the principles stated in schedule 1 (the general principles and, for a health matter or a special health matter, the health care principle). Section 7 of Schedule 1 provides for maximum participation by the adult, minimal limitations and substituted judgment.
- The learned member delivered oral reasons. As the applicant argues that the learned member gave either no or inadequate reasons, it is important to consider the reasons given by the learned member. The learned member said:
"So the tribunal has to see whether the current financial decision making support – is it giving appropriate support and adequate support for decision-making? It is clear from the evidence before the tribunal that the two attorneys that [WDE] appointed do not get on. That is putting it mildly. It is not uncommon for family to have differences. It’s not uncommon for relationships to break down and for those relationships to be extremely dysfunctional. What the tribunal has to do is not to make judgments, and I’m not making any moral judgment about the actions of any of these family members, because they all, in my mind, clearly love their mother and think they want to do the right thing. However, what I’m looking at, from a determinative point of view, is what adequate and appropriate support can be put in place if it’s not already in place for financial decision making?"
- The learned member then considered her options for a financial decision maker for WDE in light of the application by BLZ for leave to resign as attorney. The learned member decided that leave should be given for BLZ to resign as attorney saying:
"The tribunal is certainly reinforced in giving that leave to resign because of the other factors raised which is that [BLZ] does have some ongoing likely conflicts of interest if she remains as financial decision-maker arising out of her interweaved financial relationships with her mother, her principal. Not only is it necessary to look at a regular basis – I understand it may be done at the end of each financial year – the interest rate that should be payable on the outstanding loan, but also it may well be that decisions will have to be made in relation to whether the loan arrangement should be brought to an earlier end than the terms set out in the agreement. Those decisions are such that [BLZ] would be irretrievably subject to conflict. That’s not the end of the world, but it makes life more difficult for smooth and appropriate decision-making and it would involve making applications back to this tribunal. I accept that, therefore, leave should be given to resign. "
- This decision left WJB as the sole attorney for financial matters. The learned member stated in her reasons that the decision of how to fund the aged care fees to be made by the attorney must be taken in conjunction with the views and wishes of WDE and not only on a strict financial basis. In making this decision, WJB may encounter a conflict of interest. This led the learned member to make a direction that no decision was to be made to bring an early end to the loan to BLZ without obtaining prior authorisation of the Tribunal.
- It is clear that the learned member made findings about the potential conflicts of interest that might arise both in relation to BLZ remaining as attorney for WDE and WJB in her ongoing role as attorney. The learned member then turned to the application for the appointment of a guardian by WJB. The learned member identified that the only area of decision making relating to personal matters for WDE in WJB’s view was health care.
- The learned member made reference to the complexity of some of the health care decision making for WDE given her health, referring to a ‘background of ischaemic heart disease with dementia’ as well the potential ‘ongoing impacts from the transient ischaemic attacks and possible heart involvement’ from the previous year. Further the learned member referred to the likely need for assessments to be made to formulate the basis for other health care decisions and that there might be some ‘interventions’ that may need to be considered in order to meet WDE’s health care needs.
- The learned member appropriately considered whether the statutory health attorney regime might operate to enable health decisions to be made for WDE without any formal appointment of a guardian but found that the various family members all having equal standing to make health care decisions was ‘fraught with difficulties’ and on the evidence before the learned member including what she found to be ‘diverging differences of approach by family members’ may lead to delays in healthcare providers ascertaining what consent or lack of consent is in process and may interfere with a proactive approach to health care.
- The learned member said:
"…I’m satisfied that for many years BLZ has been very closely involved with her mother. Proximity itself is not the only factor. It’s closeness in relation to who’s looked to in order to respond to requests or to respond to perceived difficulties on the part of the adult. So the tribunal recognises that for many years BLZ had been taking on some role in relation to meeting some of the needs of WDE, but particularly, since her cognitive functioning was declining, seems to have taken on that role as well. That does not play down the role of other family members. WJB, I acknowledge, also in the more recent past, has taken a more direct involvement in getting hold of information, making arrangements for her mother and putting in place appropriate measures for healthcare."
- The learned member correctly stated that she must be satisfied of the appropriateness considerations when determining who should be an appropriate appointee where there is more than one applicant and when not satisfied that dual appointees or proposed appointees can work together. The applicant does not claim that the member erred in finding that she and BLZ could not work together.
- Section 14 of the GAA provides that the tribunal may appoint a person as guardian for a matter only if, relevantly for the purposes of the appeal, having regard to the matters mentioned in section 15(1) the tribunal considers the person appropriate for appointment. Further, the tribunal may appoint the public guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter. Section 15 sets out the appropriateness considerations and relevantly states::
- In deciding whether a person is appropriate for appointment as a guardian or administrator for an adult, the tribunal must consider the following matters ( "appropriateness considerations" ) —
- (a)the general principles and whether the person is likely to apply them;
- (b)if the appointment is for a health matter—the health care principle and whether the person is likely to apply it;
- (c)the extent to which the adult’s and person’s interests are likely to conflict;
- (d)whether the adult and person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the adult;
- (e)if more than 1 person is to be appointed—whether the persons are compatible;
- (f)whether the person would be available and accessible to the adult;
- (g)the person’s appropriateness and competence to perform functions and exercise powers under an appointment order.
- The fact a person is a relation of the adult does not, of itself, mean the adult’s and person’s interests are likely to conflict.
- Also, the fact a person may be a beneficiary of the adult’s estate on the adult’s death does not, of itself, mean the adult’s and person’s interests are likely to conflict.
- The learned member then reasoned:
"I consider that the interests of either of the proposed applicants and the adult are not likely to conflict over healthcare decisions. I believe that they will obtain relevant information. They will try to ensure that decisions are made in accordance with the general principles and the healthcare principles, and that they will make decisions devoid of personal interests in the outcome. I’m also satisfied that BLZ is more accessible, not only from a geographic point of view, but she appears, clearly from the evidence, as the person that WDE will look to, to give the primary or initial response to inquiries about several matters, including health care. I believe that BLZ has been contacted, even recently, in relation – by the adult in relation to queries that she has, that she’s able to be called upon, she’s willing to be called upon and she’s more accessible, in a physical sense, than perhaps WJB would.
It is not a mater, as I say, necessarily of just physical proximity. People overseas are appointed as guardians for healthcare consents. It’s a matter of understanding the function, acting without any conflict of interest and applying not only the general principles and the healthcare principles, but acting in accordance with the requirements of proper substituted decision-making regimes. I’m satisfied, in all, that BLZ has a more appropriate background in providing support of this type to her mother and that she would be appropriate in those circumstances, to be the guardian for healthcare. …"
- In our view, the learned member quite properly considered the appropriateness considerations in s 15 of the GAA. The learned member made findings that both WJB and BLZ were loving daughters. Having made a finding that there may be conflicts of interest in relation to financial decisions making if BLZ remained an attorney for financial decision making, she was satisfied that interests of both BLZ and WJB were not likely to conflict over health care decision making. It is not argued in the appeal that there was any evidence before the learned member other than the circumstances surrounding the loan agreement and the forgiveness of it in the will that gives rise to a conflict of interest in relation to BLZ making health care decisions for WDE. The learned member has taken that matter into account. There was no submission made by WJB’s counsel in the terms now argued on appeal that as guardian, BLZ may make decisions that would shorten WDE’s life to avoid repayment of the loan prior to WDE’s death and before 2024. On appeal it is not argued that there was any evidence before the Tribunal that would lend support to a finding that BLZ may have this sinister motive in acting as guardian for WDE. Further, and in any event, the learned member made a finding that BLZ would in her view make decisions in accordance with the general principles and the healthcare principle.
- In our view the steps the member recorded the steps she took in arriving at the decision. She made clear findings of fact. It was not in our view necessary for her to again state the findings regarding the loan agreement when considering the application to appoint a guardian. The learned member clearly made a finding that the adult’s interests so far as health care matters were concerned were not likely to conflict with the interests of BLZ.
- Further, the learned member clearly provided WJB with an opportunity to tell the learned member why she should not consider appointing BLZ. The learned member said:
"…[WJB] can I have your comments, then, on whether I should be considering – if I do get over hurdle of saying there should be a guardian, and if I think it should be for healthcare only, what do you think are the reasons I should not be considering appointing your sister BLZ solely as – I don’t see any point in putting your jointly, because you won’t get on, so – solely as the guardians for healthcare decisions?"
- When give that opportunity WJB had the following response:
"I don’t think that [BLZ] should be considered because of the – she’s not rising above the situation. She’s not considering – she’s considering the division in the family, rather than what’s best for Mum. To me, you know, this is about Mum and what actually is best for Mum, not who ca – I hadn’t even considered – to me, a person with dementia – it is really important that all members of the family actually visit. I wouldn’t even consider that one particular member doesn’t visit. In fact, to me, that would be detrimental to the particular – you know, to the carer for that aged care person and, in particular, my mother. You know, so I just feel that that is more likely to actually occur with [BLZ] in her thought process, rather than to me, as far as general health care.
It really should be – I have the expertise in – as far as healthcare. I understand the whole aged care system and I feel that, as far as dealing with any of the situations, she would not have any expertise."
- The learned member also provided WJB’s counsel with an opportunity to make any submissions regarding the appointment of a guardian. Counsel argued that WJB had been informally making health care decisions for WDE and that should continue. Counsel did not submit that the existence of the loan agreement created a conflict for BLZ in acting as guardian.
- There is a well-defined principle and practice that an issue cannot be raised for the first time on appeal except in special circumstances and certainly not where, had it been raised at first instance, evidence might have been led to defeat it.
- We do not consider it was necessary for the learned member was required to treat WJB’s application proposing herself for appointment as a separate application to determining that BJZ be appointed. Once the application for the appointment of a guardian is made, the member must determine that application. The application will contain the name of a proposed appointee but it is up to the member who they appoint assuming ss 12(1)(a), (b) and (c) are satisfied. In doing so, the member has in the application information about who is proposed for appointment. However the terms of s 14 of the GAA which are set out above requires the member to consider who is appropriate for appointment. Where there is more than one person appropriate for appointment but those people cannot work together, then in exercising the discretion in s 12 the member can decide one person to be appointed. This is what the learned member did.
- The application to appeal is dismissed.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 142(1).
 Ibid, s 142(3)(b).
 QCAT Act, s 146.
 Annexure “A” to the Application for leave to appeal or appeal filed by the applicant on 17 May 2018.
 The Appellant’s outline of submissions dated 16 August 2018, in particular, at  and .
 Three are actually identified. However, errors numbered 2 and 3 are identical.
 Annexure “A” to the Application for leave to appeal or appeal filed by the applicant on 17 May 2018 under the heading “Ground 1”.
 Annexure “A” to the Application for leave to appeal or appeal filed by the applicant on 17 May 2018 under the heading “Particulars”.
 The Appellant’s outline of submissions dated 16 August 2018, in particular, at  and .
 The Appellant’s outline of submissions dated 16 August 2018, .
 Ibid, .
 Ibid,  - .
Waterways Authority v Fitzgibbon, Mosman Municipal Council v Fitzgibbon, Middle Harbour Yacht Club v Fitzgibbon (2005) 221 ALR 402.
 Ibid,  - .
 NSWCATAP 107.
Ibid,  - .
  QCATA 114, .
 Transcript 1-3, lines 43-47 and 1-4, lines 1-3.
 GAA, s 11.
 Ibid, s 7 of Schedule 1, in particular, s 7(3), (4), (5) and (6).
 Transcript 1-59, lines 35-45.
 Transcript 1-60, lines 14-25.
 Ibid, 1-62, lines 7-10 and lines 29-34.
Ibid, 1-64, lines 5-6.
 Ibid, lines 10-12.
 Transcript 1-64, lines 25-30 and lines 14-23.
Ibid, lines 30-40
 Ibid, lines 42-46.
 Transcript 1-65, lines 4-23.
 Transcript, 1-44, 23-28.
 Ibid, 30-39 and 43-45.
 Ibid, 1-45, 1-46.
 Metwally v University of Wollongong (1985) HCA 28; Water Board v Moustakas (1988) 180 CLR 491 at 497; Walker & Anor v Davlyn Homes P/L  QCA 565.
- Published Case Name:
WJB v BLZ; WDE
- Shortened Case Name:
WJB v BLZ; WDE
 QCATA 92
Senior Member Guthrie, Member Gardiner
20 Jun 2019